Saraji miner ordered back to work after 'scab' comment

THE Fair Work Commission has ruled that BHP Coal must reinstate a fired Saraji mine worker who referred to "scabs" in conversation with a colleague.

After the conversation on October 15 last year, Gary McDermott, who had been an operator at the mine for 12 years, was asked to show case as to why he shouldn't be fired for saying it.

Mr McDermott said his colleague had said words to the effect of "we are here to pick up your dig rate you useless c***".

"I was offended by the comment. Without thinking I retorted with a comment to him to the effect that all he does is suck d*ck," Mr McDermott said in a response letter to BHP Coal.

"While I am not completely sure of the next statement I made to the best of my recollection I said words to the effect of 'next the scabby/grubby (not sure which) from down the other end will be here on the shovel'. This comment was not directed at anyone participating in the conversation or any particular person."

BHP Coal alleged he had said "it doesn't matter, the scabby bugger will come and jump on it anyway".

On November 6, the company handed Mr McDermott a termination letter, saying he had breached the BHP Billiton Charter Values of Respect, Integrity and Accountability.

He was given four weeks' termination pay.

In the Fair Work Commission in Brisbane last week, Commissioner Paula Spencer found that Mr McDermott's termination had been "disproportionate" to his breach.

The Commissioner said while it was understandable that the employer consider Mr McDermott's behaviour to be non-compliant with the Code and Charter values, "it could equally be construed that the standards of behaviour in terms of the language and the interaction used by the other employees involved, also fell short of the required standards".

She ordered Mr McDermott be reinstated within 14 days of the order, but declined to order remuneration, as he had breached company policy.